Skip to content


East Suffolk Rivers Catchment Board Vs. Kent and Another - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case Number[1940] UKHL 3
Judge
AppellantEast Suffolk Rivers Catchment Board
RespondentKent and Another
Excerpt:
the lord chancellor my lords, on 1st december, 1936, there was an exceptionally high spring tide on the coast of suffolk and this, reinforced by the influence of a northerly gale, caused the waters of the river deben (which is tidal below woodbridge) to rise so high as to wash over and break through in many places the ancient walls or banks, made of clay and stone, which ordinarily prevent the flooding of the adjoining marshland. the marshland inside the walls is at a lower level than ordinary high tides, and consequently if a breach is made in the walls the tidal water which enters will keep the marsh pastures flooded until the gap in the wall has been stopped, and the invading water has been drained away. there were no less than 22 breaches caused by this high tide in the walls of the.....
Judgment:

The Lord Chancellor

MY LORDS,

On 1st December, 1936, there was an exceptionally high spring tide on the coast of Suffolk and this, reinforced by the influence of a northerly gale, caused the waters of the River Deben (which is tidal below Woodbridge) to rise so high as to wash over and break through in many places the ancient walls or banks, made of clay and stone, which ordinarily prevent the flooding of the adjoining marshland. The marshland inside the walls is at a lower level than ordinary high tides, and consequently if a breach is made in the walls the tidal water which enters will keep the marsh pastures flooded until the gap in the wall has been stopped, and the invading water has been drained away. There were no less than 22 breaches caused by this high tide in the walls of the River Deben alone, with the result that very extensive flooding took place. One of the most serious floodings occurred through a breach, estimated to measure 20 or 30 feet across, in the wall which guarded the marsh pastures of a farm belonging to the Respondent Porter, of which the Respondent Kent was the occupier. Some 50 acres of these pastures became and continued thus flooded.

The Appellants are the Catchment Board, constituted under the Land Drainage Act, 1930, for the main rivers of East Suffolk, and the River Deben is one of these. By section 6 of the Act the Catchment Board exercises the powers conferred by the Act on Drainage Boards, so far as concerns the main rivers, including the banks thereof, and drainage works in connection with the main rivers. These powers, by section 34 (i) (a), include the power to repair any existing water course or drainage work, and the interpretation section (section 81) makes it plain that this includes the repair of such walls or banks as guarded the Respondents' farm until they were broken through. The Statement of Claim contained the allegation that the Appellants were under a duty to keep the Respondents' walls in efficient condition and, if a breach occurred, were under a duty "efficiently and with the utmost expedition" to repair any breach. This contention was, however, rejected by Mr. Justice Hilbery who tried the case, and in taking this view, which is plainly right, the learned judge was following and approving previous decisions by Mr. Justice du Parcq (as he then was)in the case of Smith v. Cawdle Fen, Ely (Cambridge) Commis- sioners, (1938) 4 A.E.Rep. 64, and Mr. Justice Stable in Gillett v. Kent Rivers Catchment Board (1938) 4 A.E.Rep. 810 at pp. 813, 814. Before the Court of Appeal, the Respondents no longer con- tended that the Land Drainage Act imposed on the Appellants a positive duty to intervene and undertake the repair of any breach, and the argument there and before this House has proceeded on the basis that the Appellants had statutory power to intervene, but were not under a duty to do so which could be enforced by action. It is to be noted, however, that under section 12 a Catchment Board which fails to exercise its powers may, in certain circumstances, be directed by the Minister of Agriculture and Fisheries with respect to the performance of its statutory functions.

If, therefore, the Appellant Board had remained entirely passive, it is agreed that the Respondents could not have succeeded in any action against them for nonfeasance. But the Appellants did not remain inactive, but endeavoured to deal with all the breaches that had taken place in their area, amounting to about 30 in number,including the serious breach in the wall skirting the Respondents' land. In the other cases on the River Deben the Appellants seem to have been successful, but Mr. Justice Hilbery has found, and, following the Court of Appeal, I am prepared to accept the learned judge's finding on the facts, that the methods adopted and the staff employed in trying to repair the damage to the wall, with which we are concerned in this case, were so inefficient that, whereas the gap could, by the exercise of reasonable skill, have been closed and the flooding arrested in 14 days, this result was not in fact attained till after the lapse of 164 days. In the meantime, of course, the marsh pastures remained covered by salt water and the Respondents continued to suffer the damage which had been initiated by the breach in the wall. For the purpose of deciding the difficult and important issue of principle which now arises, details as to the Appellants' unsuccessful efforts do not matter, but it is convenient to state that it was only at the third attempt that the gap was successfully filled, and that in the view of the learned judge, who had a body of expert evidence before him, the earlier efforts of the Appellants, which consisted in attempting to build straight across the gap instead of building a semi-circular bastion out into the saltings and then reconstructing the wall behind this protection, had only the remotest possibility of success, and caused the delay.

The problem of law which now arises for solution is by no means an easy one. Its essential elements are these, (1) The Appellant Board were under no statutory duty to repair the breach, but they had the power to enter upon the land for the purpose of endeavouring to effect such repair and they did so enter. (2) It was the original breach in the wall, caused by the act of nature, which produced the flooding of the Respondents' land and it was the opera tions of the ride which kept it flooded; the efforts of the Appellants were directed to abating this damage. (3) If the Appellants had not shown such want of skill in trying to repair the wall, and if they had been served by an adequate well-trained staff, the gap in the wall would have been closed much sooner than it was and the flooding would have been more promptly abated.

The question is whether, in the above circumstances, the Appellants are liable to the Respondents in damages to such amount as would represent the net loss to the Respondents due to the delay in abating the flood. The Court of Appeal were divided on this issue. Lord Justice Slesser and Lord Justice MacKinnon thought that the Appellants were liable as for breach of duty to do their work with reasonable care and expedition. Lord Justice du Parcq differed and held that the Appellant Board was "not liable for damage “suffered through failure to exercise its powers adequately or at all, even though the damage might have been averted or lessened by the exercise of reasonable care and skill."

It is not, of course, disputed that if the Appellants, in the course of exercising their statutory powers, had inflicted fresh injury on the Respondents through lack of care or skill, they would be liable in damages for the consequences of their negligent act. If, for example, the Appellants, by their unskilful proceedings had caused a further area of the Respondents' land to be flooded, or had pro- longed the period of flooding beyond what it would have been if they had never interfered, they would be liable. But (apart from two minor matters, which it is agreed do not govern the main issue) nothing of this sort happened. The Respondents would have gained if the flooding had been stopped sooner; their complaint against the Appellants is that they did not act with sufficient skill to stop it more promptly; but the Respondents cannot point to any injury inflicted upon them by the Appellant Board, unless it be the Board's want of success in endeavouring to stop the flooding at an earlier date.

In order that the Respondents should succeed in this action, it is necessary that they should establish, not only that the Appellants were wanting in care and skill when exercising their statutory powers, but that they inflicted injury and loss upon the Respondents by their negligence. Lord Parker thus states the proposition in G.C.R. v. Hewlitt ([1916] 2 A.C. 511 at p. 519). 'It is undoubtedly a well-settled principle of law that when statutory powers are conferred, they must be exercised with reasonable care so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damage for negligence may be recovered. In the present case the damage done by the flooding was not due to the exercise of the Appellants' statutory powers at all. It was due to the forces of nature which the Appellants, albeit unskilfully, were endeavouring to counteract. Supposing, for example, that after the Appellants had made their first unsuccessful attempt they had decided to abandon their efforts altogether, the Respondents could have had no legal claim against them for with- drawing, even though the result might have been to leave the Respondents' land indefinitely flooded. This shows, I think, how different is the relation between the Catchment Board and individual owners or occupiers like the Respondents, and the relation between a contractor employed by the Respondents to mend the wall. In the latter case the Respondents would have a remedy in damages if the contractor did not exercise reasonable skill and promptness in discharging his task and if damage resulted. But in the former case the Catchment Board has its responsibilities over the whole of its area to consider; it may be that in its judgment it is necessary to use its skilled staff in mending other breaches; it may be that the outlay involved in making a good job of one particular repair is more than its limited finances would permit. Part IV of the Land Drainage Act contains financial provisions; without setting these out at length, it is sufficient to say that the expenses of the Catchment Board are met by the issue of precepts to the County Council and, it may be, to certain other local bodies, but that the statute puts limits to the amounts thus raised. Lord Justice du Parcq, in his dissenting judgment, points out that when Parliament has left it to a public authority to decide which of its powers it shall exercise, and when and to what extent it shall exercise them, this may raise "a question involving the consideration of matters of policy and sometimes the striking of a just balance between the " rival claims of efficiency and thrift.

Reference was made during the argument, as was natural, to the well-known words of Lord Blackburn in Geddis v. Bann Reservoir Proprietors (3 A.C. 430 at p. 455). I take it, without citing cases, that it is now thoroughly well stablished that no action will lie for doing that which the legislature has authorised,

 If it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently." Lord Blackburn would certainly not wish to be understood as saying that such an action would lie in the absence of proof that the defendant's negligence caused damage; indeed, negligence in such a connection involves the twofold conception of want of care on the part of the defendant and the consequential infliction of loss upon the plaintiff.As Lord Reading C.J. observed in Munday v. London County Council (1916) 2 K.B. 331 at p. 334, "Negligence alone does not give "a cause of action; damage alone does not give a cause of action; " the two must co-exist." A third essential factor is the existence of the particular duty. As Lord Wright expressed it in Lochgelly Iron and Coal Co., v. M'Mullan [1934] A.C.1 at page 25, Instrict legal analysis, negligence means more than heedless or care-less conduct, whether in omission or commission: it properly con notes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing."

Moreover, as Lord Justice Scrutton has pointed out in Sheppard v. Glossop Corporation ([1921] 3.K.B. 132 at pp. 145, 146) Lord Blackburn's passage must be read in the context in which it was pronounced. I agree with Lord Justice due Parcq that it would be misapplied if it were supposed to support the proposition that a public body, which owes no duty to render any service, may become liable at the suit of an individual, if once it takes it upon itself to render some service, for failing to render reasonably adequate and efficient service. On the other hand, if the public body by its unskilful intervention created new dangers or traps, it would be liable for its negligence to those who suffered thereby. Lord Justice Scrutton, at page 149 of Sheppard v. Glossop Corporation, has a passage which makes the same distinction. That case was concerned with a local authority upon which Parliament had conferred a discretionary power of lighting. "If they do light," said the learned Lord Justice, "they will be liable in damages for negligence in lighting; negligence in allowing gas or electricity to escape; negligence in putting posts in a highway without warning; and negligence in placing traps and dangers in the streets and not lighting them at night. But they are not liable merely because in the exercise of their discretion they do not light, or because they discontinue lighting, dangers which they have not themselves created."

These considerations lead to the conclusion that the Respondents' claim is ill-founded. They have suffered damage by the flooding of their land during four months or more. They seek to recover compensation from the Appellants for all of this loss except the first fortnight. But the Appellants did not cause the loss; it was caused by the operations of nature which the Appellants were endeavour ing, not very successfully, to counteract. It is admitted that the Respondents would have no claim if the Appellants had never intervened at all. In my opinion, the Respondents equally have no claim when the Appellants do intervene, save in respect of such damage as flows from their intervention and as might have been avoided if their intervention had been more skilfully conducted.

In my opinion, therefore, the Appeal should be allowed.

Lord Atkin(READ BY LORD PORTER)

MY LORDS,

Two material points emerged on the argument of this appeal: —-

1. Was there a duty owed to the plaintiffs and, if so, what was its nature?

2. If there was a duty owed to the plaintiffs to conduct the work with     reasonable despatch, was there any damage caused to the plaintiffs by the breach of the duty?

On the first point I cannot help thinking that the argument did not sufficiently distinguish between two kinds of duties.

3. A statutory duty to do or abstain from doing something.

4. A common law duty to conduct yourself with reason- able care so as not to injure persons liable to be affected by your conduct.

5. The duty imposed by statute is primarily a duty owed to the State. Occasionally penalties are imposed by the statute for breach; and, speaking generally, in the absence of special sanctions imposed by the statute the breach of duty amounts to a common law misdemeanour. The duty is not necessarily a duty owed to a private citizen. The duty may, however, be imposed for the protection of particular citizens or class of citizens, in which case a person of the protected class can sue for injury to him due to the breach. The cases as to breach of the Factory or Coal Mines Act are instances. As a rule the statutory duty involves the notion of taking care not to injure and in such cases actions for breach of statutory duty come within the category of negligence. (Lochgelly Iron and Coal Co. v. M'Mullan But apart from the existence of a public duty to the public, every person whether discharging a public duty or not is under a common law obligation to some persons in some circumstances to conduct himself with reasonable care so as not to injure those persons likely to be affected by his want of care. This duty exists whether a person is exercising a public duty, or merely exercising a power which he possesses either under statutory authority or in pursuance of his ordinary rights as a citizen. To whom the obligation is owed is, as I see it, the principal question in the present case.

Of the existence of the duty and the nature of it in the case of statutory duties or powers there is abundant authority, most of which was cited. I do not propose to discuss the cases, but will mention the following: Boulton v. Crowther (1824), 2 B. and C., 703: Trustees acting under Turnpike Act authority: If, in doing the " act, they acted arbitrarily, carelessly or oppressively, the law in my opinion has provided a remedy" (per Abbott, C.J., at page 707): Southampton and Iichen Floating Bridge Company v. Local Board of Health of Southampton (1858), 2 E. and B. 801: Demurrer overruled to the declaration which alleged that the defendants conducted themselves so wrongfully, improperly and negligently and with such want of due and proper care" as to injure the plaintiffs; Whitehouse v. Fettowes (1861), 2 C.B., N.S., 765, another case of negligence by trustees under a Turnpike Act: It may be observed that the act I have supposed to be done by the trusteesis one which must necessarily produce damage whether done carefully or not, but the qualification put in the case is this, that if the act authorised to be done by the trustees is done so carelessly or improperly that the careless or improper manner in which it is done either creates or increases the damage, the trustees will be liable " (Williams J., at page 780); Mersey Docks and Harbour Board Trustees v. Gibb (1886), 1 E. and I. App., 93; Geddis v. Proprietors of Bann Reservoir, 3 A.C., 430: "An action does lie for doing that which the Legislature has authorised if done negligently (per Lord Blackburn at page 456), with the prelude that it is now thoroughly well established"; Milward v. Redditch Local Board (1873), 21 W.R., 429, where it was held that the defendants "had no right to make improvements in a way calculated to cause unnecessary injury to the plaintiffs"; Roberts v. Charing Cross, Euston and Hampstead Railway (1903), 87 L.T., 732 (an action to restrain a railway company from working by night so as to disturb plaintiff): "To this principle there is, how- " ever, one qualification which is well settled and indeed is admitted " by the defendants—namely, that in carrying out works authorised by statute you must not act negligently"; Mayor, etc., of East Fremantle v. Annois (1902), A.C., 213, where Lord Macnaghten accepts Abbott, C.J.'s statement in Boulton v. Crowther (supra) quoted above; Howard-Flanders v. Maldon Corporation (1926), 135 L.T., 6, where Lord Hanworth, M.R., at page 10, says that the defendants "must not act unreasonably, arbitrarily, oppressively " or wantonly ", and Scrutton, L.J., at page 11, selects a passage from the judgment of Lord Collins in Southwark and Vauxhall Water Company v. Wandsworth Local Board (1898), 2 Ch., 203: Merely an assertion of the proposition so frequently affirmed that where statutory rights impinge upon what but for the statute would be the rights of other persons, they must be exercised reasonably so as to do as little mischief as possible. Finally I would refer to Sheppard v. Glossop Corporation (1921), 3 K.B. 132, where the decision was based upon an acceptance of the pro- position that an undertaker is liable if he exercises a power negligently, but is not liable for refusing to exercise the power though it might be reasonable to do so. I was a party to that decision, and will not cite any remarks of Bankes L.J. or myself but will refer to words taken from Scrutton L.J. at pp. 145-6: "But it is going far beyond Lord Blackburn's dictum to say that because when an option is given by statute to an authority to do nor not to do a thing and it elects to do the thing and does it negligently it is liable, therefore it is liable if it elects not to do the thing which by the statute it is not bound to do at all.

I treat it therefore as established that a public authority, whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or, as it is put in some of the cases, must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual, which is the question in this case, I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence, by which I mean reasonable despatch. I cannot imagine this House affording its support to a proposition so opposed to public interests, when there are so many public bodies exercising statutory powers and employing public money upon them. I myself have been unable to think of any case where a duty to perform a continuous operation with reasonable care, i.e. without negligence, does not involve an obligation to perform it with reasonable despatch. Of course what is reasonable means reasonable in all the circumstances of the particular case.

I thus come to the crucial point in this case: to whom is such a duty owed, or who can complain of the failure to use reasonable despatch? Now it must be conceded that instances will occur of the exercise of powers where it might be difficult for a member of the public generally to complain of unreasonable delay. For instance delay in the work of relaying the surface of a highway may not be actionable at the suit of members of a highway are put to expense and inconvenience by having to make a detour. Even in this case I think something might be said for a house- holder or shopkeeper on the route under repair who is for an unreasonably long time deprived of access to his premises for him- self and his customers. But we have to deal here with relations between the plaintiffs and the Board, which I suggest are much closer than the general relations of members of the public to a public authority. The Board were engaging themselves in repairing the plaintiffs' wall with the object of reventing the further flooding of the land of the plaintiffs, and I think also of one other occupier, and they were operating upon the plaintiffs' land. Subject to what I have to say upon the causation of damage, which I wish for the present purpose to assume, they would know that the longer the work was delayed the longer would the waters ebb and flow over the land, with the possibility of damage therefrom. In my opinion these relations give rise to a duty owed to the plaintiffs to use reasonable care, including despatch, in doing the work. Indeed over and over again the appellant's counsel admitted that if and so far as their work was conducted with such unreasonable delay as to deprive the plaintiffs of the use of their land owing to occupation by the Board's workmen or materials there would be a good claim for damage. This admits a duty owed to the plaintiffs in respect of despatch, and this controversy is confined to the extent of the duty and the injury caused by it. It is in respect of this use of the plaintiffs' land that the question as to the power of the plaintiffs to do the work themselves becomes at all relevant. I feel sure that the reference to this in Slesser L.J.'s judgment was misunderstood in the appellant's argument. It is not that the Board owed a duty to the plaintiffs because the plaintiffs could have done the work themselves. I think that the argument is that the Board came upon the plaintiffs' land to do work which the plaintiffs could have done themselves, and that that circumstance indicates a relationship which imports a duty owed to the plaintiffs to do the work with reasonable despatch. I do not wish to refer in detail to Donoghue v. Stevenson (1932), A.C. 562, but I venture to think that the principles there accepted by the majority of this House give guidance on this part of the case.

I now come to the second part of the case, viz., whether, if there existed any duty owed by the Board to the plaintiffs to conduct the work with reasonable despatch, there was any damage caused by the breach.

I would begin by noting that there is in pleading no difference between actions of contract or tort as to the allegation of the cause of damage: "per quod", or, as in Bullen and Leake, "whereby", is the conventional averment that damage resulted from an infringement of a right of the plaintiff whether based on contract or tort. This merely illustrates the legal position. The damage must be such as would flow from the breach of duty in the ordinary and usual course of things. That is the general rule, both in contract and in tort, except that in contract the law does not consider as too remote such damages as were in the contemplation of the parties at the time when the contract was made. Subject to that, only such damages can be recovered as were immediately and naturally caused by the breach "; Cobb v Great Western Railway Co. (1893) 62 L.J.Q.B., at p. 337, cited by Lord Sumner in Weld-Blundell v. Stephens (1920), A.C at p 979

The doubt that has arisen in the present case is as to whether the particular damage relied on by the plaintiffs was caused by the breach. The flood, it is said, broke down the plaintiffs' wall; the flow of water over their land was caused by the flood; the defendants were engaged in preventing similar damage from happening again to the plaintiffs; and nothing they did or omitted to do caused the damage complained of. I venture to think that this does not quite meet the plaintiffs' point. I understand them to say: "true it is that we cannot complain of the original flooding: and we must put up with the damage that resulted from the ebb and flow of the water over our lands for a certain time, viz., the time that would expire before our wall was repaired, once you had begun to repair it, with reasonable despatch—x days. But on the assumption now made you were under a duty to us to use reasonable despatch, and the water ebbed and flowed over our land for a far longer period—x + y days; and we have suffered damage from the presence of water for this x + y period greater than the damage we would have suffered from the x period alone." Now if the plaintiffs can prove this it seems inevitable that the extra damage is directly caused by the breach complained of. May I introduce a hypothetical case of a contractual duty, assuming as I do that the causation of damage is the same in contract and tort. Assume that a shopkeeper had his roof injured in rainy weather so that the rain came in upon his goods: and that he contracted with a builder to repair it with an express term that work should proceed without unreasonable delay. If the builder were guilty of unreasonable delay whereby the rain beat upon the shopkeeper's goods for say 14 days instead of 4, would not the shopkeeper be able to recover such damages as he could show resulted from the excess exposure, showing possibly that his goods could stand 4 days' exposure with little damage but could not stand the extra 10? I think that this would be a plain case: and it would not depend upon an obligation to complete the work. The builder might be protected from an obligation to complete by subsequent conditions, death, strikes, war and the like, but for such damage as would be shown to be due to delay in the work while it was being performed I conceive he would clearly be liable. Such damage would be caused by the delay in repair, notwithstanding that the original cause of damage, the rain, and its continuance were in no way caused by the builder. I am therefore of opinion that if the plaintiffs could prove the case indicated above they should succeed. I appreciate that there is very slight evidence at present in support of this case, and I should not myself be prepared to accept the Judge's suggestion, if that is what he really intended at p. 39 (A) of his judgment, that each day after the end of 14 days the flooding caused fresh damage. But it would obviously be impossible, in a case where to avoid expense the parties had agreed not to try the question of damages at the hearing, to dismiss a case for want of satisfactory proof of damage. I should be quite content to direct the Judge to consider whether any damage at all of this kind was proved on the hearing the damages issue, and if he found substantially none then to give judgment in the result for the defendants. I think the costs in such a case should probably be reserved. On the questions, however, argued before us I think that our decision should be for the plaintiffs.

Lord Thankerton

MY LORDS,

I have had the privilege of considering the opinions prepared by your Lordships, and, while I agree with the majority of your Lordships that the Appeal should be allowed, I desire to state in my own way the principles and their application to the present case which have led me to that conclusion.

It is admitted that the Land Drainage Act 1930 did not impose a positive duty to undertake the repair of breaches in the wails and banks of the main river on the Appellants, but conferred on them power to undertake such repair, and to enter upon lands belonging to another for that purpose. It is clear to me that the Appellants owed no duty to the Respondents unless and until they actually entered on their land and commenced operations for repair of the breach. But I am equally clear that, as soon as they entered upon the land and commenced operations, the Appellants owed a duty to the Respondents to conduct such operations with such reasonable care as would avoid causing damage to the Respondents' property, and that they would be liable to the Respondents if the latter could show (a) absence of such reasonable care in the conduct of the operations, and (b) that they had suffered loss which was caused by such lack of reasonable care.

On the question of existence of a duty, it seems to me to be impossible to maintain that Parliament intended to authorise the Appellants to cause damage to the Respondents by want of ordinary care in their operations on the Respondents' property. But I must make clear that, in my opinion that duty only relates to the operations which they actually perform on the Respondents' land. If the Appellants chose to abandon the operations when only partially complete, they would be, in my opinion, entitled to do so, and would be under no liability to the Respondents for such cessation, except in so far as the partially completed works might constitute a danger leading to damage. This is clearly stated by Scrutton L.J. in the Glossop case, (1921) 3 K.B. 132, at 149 foot. This discretion as to abandonment of the operations is in marked distinction to the case of a positive statutory duty to undertake the repair, and the cases of a contractual undertaking to do the work.

The next question is as to the standard of care which will constitute reasonable care. Your Lordships have had occasion recently to point out once more that the standard necessarily varies according to circumstances, Caswell v. Powell Duffryn zAssociated Collieries Ltd., (1940) A.C. 152. It does appear to me that there are special circumstances in the case of statutory bodies, such as the Appellants, which should lead to the application of a somewhat less exacting standard than ordinarily prevails. The actions of the waters, with whose depredations they are intended to deal, are uncertain and incalculable and the provision of staff, plant and material adequate to deal with sudden emergencies, let alone their somewhat cramped financial resources, present great difficulty, and, when you add the importance and the urgency of remedial measures, it does seem to me that much may be condoned as well- meant error of judgment, which under other circumstances might be considered as unjustifiably risky. I feel bound to make these observations for future guidance, although in the present case,keeping them fully in mind, I am unable to find that Hilbery J. was not entitled to hold that the Appellants committed a breach of their duty to the Respondents in adopting a method of repair which no reasonable man would have adopted. It was in this view that I have felt throughout that the only real question in this appeal relates to ausation, and the difficulty arises from the fact that prior to the intervention of the Appellants a source of damage had been already created by the action of the flood waters and that that source continued to be available—at least in some measure—until it was at long last excluded by the operations of the Appellants. Now the point on which admittedly the success or failure of the Appeal depends, is whether the failure of the Appellants to close the breach sooner by an efficient method can be held as the causa causans of the damage which accrued during these extra days, to the exclusion of the flood breach as a cause of the damage. But it was in fact still the action of the water rendered possible by the original breach that caused the damage during these days, and failure to stop such action of the water cannot alter the fact that it is the water coming through the breach that causes the damage. I am accordingly of opinion that the Respondents have failed to make a case sufficient to establish the essential link between the breach of duty found by the learned Judge and the main damage of which they complain, and that the Appeal should be allowed.

Lord Romer

MY LORDS,

The Respondents by their statement of claim in the action alleged that after the river had broken through their wall the Defendants "as was their duty" commenced to repair the said wall, but in breach of their duty failed to do the same efficiently and with the utmost expedition possible, in consequence of which breach of duty the flooding of the Respondents' marshland continued for many months. The Respondents in other words were contending that by virtue of the Land Drainage Act, 1930, the Appellants had a duty and not merely a power to repair the wall in question. At the trial of the action this contention was rejected by Hilbery J., and neither in the Court of Appeal nor before this House was the decision of the learned Judge upon this point in any way challenged. What, however, the Respondents did contend was that, though not imposed upon the Appellants by the Act, such a duty was nevertheless imposed upon them by the common law the moment that they began to exercise their statutory power of repairing the wall. It is not and cannot be said that the duty arose from any contract between the parties express or implied. Nor is it said that it can be treated as existing by an application of the law of estoppel. For there is no evidence that would justify a finding of the existence of any such contract or of any such estoppel. The duty is said to be imposed by the common law of England.

My Lords, it has been laid down time and again that, in exercising a power that has been conferred upon it, a statutory authority is under an obligation not thereby (i.e., by the exercise of the power) to inflict upon others any damage that may be avoided by reasonable care. But I know of no authority for the proposition that in selecting the time within which, the extent to which, and the method by which its statutory power is to be exercised its owes any duty whatsoever. There is, indeed, as I will point out later on, a decision of the Court of Appeal in Englandthat is inconsistent with such a proposition. And yet this is the proposition that is involved in the Respondents' contention in the present case. They allege, and for myself I think that they have proved, that the Appellants, until they eventually embarked upon the construction of the V-shaped dam, selected a method of repairing the Respondents' wall which, in view of the labour and materials at their disposal, was one that no reasonable man would have adopted. The result was that the sea water continued to flow through the breach in the wall and that the Respondents' marshland continued to be flooded for a longer time than would have been the case had the Appellants acted more reasonably; and I will assume that by reason of this the Respondents suffered material damage. Now, had the Land Drainage Act, 1930, imposed upon the Appellants the duty of repairing the wall instead of merely conferring upon them the power of doing so, they could without question have been made liable for this damage. For they would in that case have been under the obligation of effecting the repair with all reasonable skill and diligence, and they would have committed a breach of such obligation had there been any un- reasonable delay in effecting the repair, whether such delay wasdue to an unreasonable time being taken in beginning the work or in the course of carrying it out or to their having adopted an unreasonable method of repair. But the Act imposed upon the Appellants no duty of repairing the wall. It merely gave them the power of doing so. Whether or not they should exercise that power was a matter entirely within their own discretion unless and until the Minister of Agriculture intervened under Section 12 of the Act. Had they determined not to effect the repair at all, or not to embark upon the work until (say) the end of the following March, the Respondents would have had no cause of action for the damage entailed upon them by such decision. Mo one could successfully have contended that in the latter case any extra damage occasioned to the Respondents by reason of the breach in the wall remaining open to the sea between the 1st December and the end of March was due to the negligent exercise by the Appellants of the power conferred upon them by the Act. Upon what principle then can the Appellants be made responsible for such damage merely by reason of the fact that they occupied the intervening time in making a futile attempt to effect the repair by a method that any reasonable person ought to have realised had no prospect of success Supposing moreover that after having embarked upon the work of repair on the 2nd December (as the Appellants in fact did when Studd, upon the instructions of Clark, started a quite ridiculous attempt to fill up the breach by throwing into it bags of clay)—Clark had then decided that in view of the material and labour at his disposal it would be better to refrain from any further attempts at repair for the moment, upon what principle could the Appellants have been held responsible for any damage caused by the delay ?

My Lords, the Respondents' answer to these questions that I have just propounded is, 'The principle enunciated by Lord” Blackburnin the case of Geddis v. Proprietors of Bann Reservoir, “3 A.C. at p. 455." It was in these words: I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is within this rule, ' negligence' not to make such reasonable exercise of their powers." It is plain, however, on a careful reading of this passage that the damage to which Lord Blackburn is referring is the damage which "it"— i.e., the exercise of the power—occasions, and not damage that would in any case have been occasioned had the power never been exercised at all, or only exercised after a delay that might appear to be an unreasonable one. It is also to be observed that in the case which was then before this House, the damage of which Geddis was complaining was damage that he would not have sustained had the statutory authority refrained from exercising its powers. It was damage inflicted upon him by reason of the fact that the authority did exercise its powers. Unless in reading Lord Blackburn's words, that circumstance be borne in mind, and unless the exact language that he used be closely scrutinised, his words are very liable to be misunderstood. It was because one Sheppard misunderstood them that he brought an action against the Corporation of Glossop and was discomfited.

The case is reported in 1921, 3 K.B., at p. 132, and the facts of it so far as material were as follows. The Corporation had the power of lighting the streets in their district, but were not under any obligation to do so. In exercise of this power they had erecteda gas lamp in a street known as Dun LMW, but on one Christmas night the lamp was extinguished by one of their servants soon after 9 o'clock in pursuance of a general order issued by them from motives of economy. Now upon that evening the unfortunate Sheppard had been paying a visit to a friend's house, and left there at 11.30 p.m. His way home led him, or rather should have led him, along Dun Lane. But when nearing the lane he found the place was in complete darkness. The result was that he missed the proper entrance to the lane and wandered on to some adjoining land. He eventually arrived in the lane by falling over a retaining wall at its side, and was seriously injured. Feeling somewhat strongly, and not unnaturally, that any lighting authority which turned off the lights on a Christmas night at the early hour of 9 p.m. was acting in a highly unreasonable manner, he sued the Corporation for damages caused by their negligence. The action was tried before Greer J. (as he then was) and resulted in judgment being entered for Sheppard. The learned Judge found as a fact that the accident would not have happened if the lamp had been lighted. The Corporation, however, took the case to the Court of Appeal, and their appeal was allowed. It is interesting to note the contention put before that Court by the learned counsel appearing for Sheppard, because it bears a very close resemblance to the argument advanced by the Respondents on the appeal now before Your Lordships' House. "Assuming," said the learned counsel, that the Appellants are under no duty but are merely empowered to light their district; and that if they had never lighted Dun Lane the Respondent would have had no cause of action; yet having taken it upon them to light this place they were bound to light it adequately. In support of this contention he cited the words of Lord Blackburn to which I have referred and upon which the decision of Greer J. had apparently been founded. The contention in effect was this: that although a Statutory Authority may have been given a power to do a particular thing without being placed under the obligation to do it, yet the moment that it sets about doing the particular thing, the Statutory Authority is in precisely the same position as it would have been in had the legislature originally imposed upon it the duty of doing it. The contention was rejected, and in my opinion rightly rejected by the Court of Appeal. Bankes L.J. said: ‘The Appellants have merelv exercised the discretion vested in them by the Legislature. They were under no obligation to place a lamp post at this particular spot; haying placed there they were not bound to keep it there; and if they kept it there they were not bound to supply it with gas, and are not to be made liable for merely extinguishing the light at any particular hour." In making these observations the Lord Justice was not (as was made clear in an earlier part of his judgment) contemplating the case of a person being injured by running into an unlighted lamp that had been placed in the street by the Corporation. The injury in that case would have been caused directly by the exercise of the power, i.e., it would not have been suffered at all had the Corporation refrained from exercising the power. This distinction was very clearly pointed out by Scrutton LJ. Referring to Local Authorities who have had conferred upon them a discretionary power of lighting he said: "If they do light they will be liable in damages for negligence in lighting; negligence in allowing gas or electricity to escape; negligence in putting posts in a highway without warning, and negligence in placing traps and dangers in the streets and not lighting them at night. But they are not liable merely because in the exercise of their discretion which they do not light, or because they discontinue lighting, dangers which they have not themselves created." Atkin L.J, (as he then was said: "There is no duty to exercise the power of lighting at all. Nor, if the Local Authority do light, are they obliged to “light the whole of their district or any particular part of it. They are under no duty to light all dangerous places, or any dangerous place; and if they do light a dangerous place for part of the night, they are not bound to light it during the whole night. In this particular case the Local Authority did not cause the danger; it was already in existence."

My Lords, I have ventured to cite these passages at some length because they seem to lay down a principle which in 'my opinion is a thoroughly sound one. It is this: Where a Statutory Authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing. So long as they exercise their discretion honestly, it is for them to determine the method by which and the tune within which and the time during which the power shall be exercised; and they can not be made liable, except to the extent that I have just mentioned, for any damage that would have been avoided had they exercised their discretion in a more reasonable way.

In the present case the Appellants in the exercise of their discretion selected, and for some time persisted in, a method of re-pairing the breach in the Respondents' wall that no reasonable person would have adopted. I am willing to assume that the result of this was that the Respondents were damaged by reason that the sea water entered and remained upon their marsh land for a longer period than it would have done had the Appellants adopted the best method of effecting the repair. No one, however, can question, or has attempted to question, the Appellants' honesty, and in my opinion they cannot be made responsible for that damage. This was the view of the matter that commended itself to du Parcq L.J., and I respectfully agree with him. I would like in particular to express my concurrence in the following passage in his judgment: 'The law would perhaps be more satisfactory, or at any rate seem more satisfactory in some hard cases, if a body which chose to exercise its powers were regarded as being in exactly the same position as one upon which an Act of Parliament imposed a duty. On the other hand, it must be remembered that when Parliament has left it to a public authority to decide which of its powers it shall exercise, and when and to what extent it shall exercise them, there would be some inconvenience in submitting to the subsequent decision of a jury, or judge of fact, the question whether the authority had acted reasonably, a question involving the consideration of matters of policy and sometimes the striking of a just balance between the rival claims of efficiency and thrift."

My Lords, for these reasons I would allow the Appeal.

Lord Porter

MY LORDS,

In this case I have had the advantage of reading the opinion delivered by my noble and learned friend Lord Romer, and if we were not differing from the views of the Court of Appeal I should be content to agree with the opinion he has expressed. Inasmuch, however, as I think that the Appeal should be allowed, I consider it desirable that I should state very shortly why I have arrived at that conclusion.

It is common ground that an Act of Parliament may either impose a duty upon a public or other body or may grant them powers to do an act without creating any obligation upon them to undertake the task. It is conceded that whereas in the former case a body upon whom a duty is imposed must fulfil it with due care and expedition, in the latter case there is no obligation upon the body to do anything at all. If they choose for any reason which commends itself to them to leave the task unperformed no remedy can be obtained nor can any action be taken against them unless a right to do so is given by the Act which grants the power, or by some other Act.

In the present case the Land Drainage Act, 1930, by the combined effect of sections 6 and 34 gave power to a Catchment Board to maintain existing works, that is to say to drain, repair or other-wise maintain in a due state of efficiency any existing watercourse or drainage work, but imposed no duty to do so. If the Appellants had taken no action when the Respondents' bank was broken and their land was flooded, no complaint could have been made nor indeed could any steps have been taken though the Appellants had delayed before taking action, however long the delay might have been. All this is admitted on behalf of the Respondents, but it is contended that once the Appellants chose to intermeddle by undertaking the work they then were in the same position as if a duty had originally been imposed upon them. A power exercised is said to be the same as a duty imposed. In the present case the Appellants did undertake the task of repairing the breach and I see no reason for differing from the finding of the learned Judge and of the Court of Appeal that in carrying out the work they acted negligently and slothfully. If then their acceptance of the task imposed a liability to carry it put with care and circumspection, I should hold them liable for failure to perform what they had undertaken.

Once they had taken action it was, I think, clear that they were under some obligation to the owner of the land upon which their operations were being carried out. The question is not as to its existence but as to its extent.

The Appellants acknowledged their liability for any damage directly due to the action which they took. Under a proper plea, they said, an increase in the amount of soil scoured out by the ebbing and flowing of the flood or damage caused by sacks and soil spread over the Respondents' land due to the Appellants' activities would form a proper head of damage, but no such claim was made; the only loss complained of was that owing to the negligent delay in repairing the breach, the Respondents' land was flooded for a longer period than it should have been.

Damage caused by anything negligently done by the Appellants in the course of the exercise of their power which would not have occurred if they had refrained from exercising it at all would undoubtedly have to be made good on the principles set out in the well-known words of Lord Blackburn in Geddis v. Proprietors of Bann Reservoir (1878) 3 A.C. 430 at p. 455, already quoted by Lord Romer; but where, as here, the damage was not caused by any; positive act on the part of the Appellants but was caused and would have occurred to the like extent if they had taken no steps at all, I cannot see that the loss which the Respondents suffered was due to any breach of a duty owned by the Appellants. Their duty was to avoid causing damage, not either to prevent future damage due to causes for which they were not responsible or to shorten its incidence. The loss which the Respondents suffered was due to the original breach, and the Appellants' failure to close it? merely allowed the damage to continue during the time which they took in mending the broken bank. For that I do not think them liable nor can I find any case the decision in which would lead to that result.

The principle expressed by Lord Blackburn does not depend upon his statement alone, it is to be found in cases decided before his time and has been repeated many times since. Indeed in the other case referred to by my noble and learned friend, Sheppard v. Glossop Corporation (1921) 3 K.B. 132, Scrutton L.J. says at

p. 145: —

 But it is going far beyond Lord Blackburn's dictum to say that because, when an option is given by statute to an authority to do or not to do a thing and it elects to do the thing and does it negligently, it is liable, therefore it is liable if it elects not to do the thing which by the statute it is not bound to do at all.

 Because an authority elects to do a thing and does it negligently it is liable," says Scrutton L.J.” An action does lie for doing that which the Legislature has authorised if it be done negligently," says Lord Blackburn.

But in each case the words must be read with reference to the matter which was being decided and the sense in which they were used is illustrated by the passage immediately preceding that which I have quoted from Scrutton L.J.: —

 Lord Blackburn's words are addressed to negligence in the direct operation of the powers conferred and undertaken; for instance if the Appellants chose to light by electricity and laid defective wires near to the main gaspipes in their district and so caused an explosion, that would be a negligent exercise of their powers; or if they placed a refuge in a crowded street and omitted to light it properly, that might be doing negligently that which the Legislature authorised."

It is damage caused by negligently doing the act authorised, not damage which is not prevented because the act has not been done or has not been done efficiently or in time which is under consideration. If those who are authorised but not enjoined to act could be successfully sued for a failure to exercise their power I should have thought it unlikely that they would undertake the permitted task, since to do so would be to invite an action at the suit of any person who considered that they had not acted with due vigour and care.

The result might well be that in circumstances like those under consideration action would not be taken where immediate action was necessary. A local authority faced by such a series of disasters as occurred in the present case might consider that the flooded land was not very valuable, but that they were justified in making anattempt to clear it of water provided the expense was not serious and think that the expenditure of some small sum would not be too great in an attempt to prevent the damage. In such a case, with their eyes fully open to the possibility of failure, they might think they were entitled to take a chance or remedying the position with that limited expenditure but would not feel justified in doing the work in some way which would ensure its success but at a great cost. If the Respondents be right such a decision could never be made safely since the local authority by acting would expose themselves to the risk of an action for damages at the suit of a third party claiming that having undertaken the task the body to whom power had been given must continue with the work until it reached a successful conclusion though the expense would far exceed the value of the land they would thus have saved.

If to undertake the work were to accept the responsibility for completing it with due care and with reasonable dispatch, no prudent authority could safely act at all .except in a case where certainty of success at a limited cost could be guaranteed. I do not say that these were the considerations which influenced the Appellants in the present case, but the example given does, I think, illustrate the danger of acceding to the argument put forward on behalf of the respondents.

I should add that under the Act in question, if the local body fail to take action in a case where it is thought that they properly ought to do so, there is power for the person aggrieved, under section 2 of the Act, to apply to the Secretary of State for an order that they carry out such work as he instructs them to do.

I also desire to make it clear that in what I have said I am not dealing with a case in which it was contended that the authority were stopped from alleging that they were under no obligation to do the work efficiently and with reasonable dispatch. No evidence was given nor was there any plea that the Appellants by their; action had caused either of the Respondents to change his position in reliance upon anything which they had said or done. Such a case must wait for decision until facts are alleged and proved such as would create an estoppel.

The sole question in the present case is whether the mere undertaking of a task which the Legislature has empowered an authority to do puts them in the same position as if that task had been imposed as a duty upon them. I agree that it does not and would allow the Appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //